IN THE SUPREME COURT OF THE STATE OF MONTANA 

P R SYSTEMS, WILLIAM ALLEN PARRY, 

Trustee, 

Defendant and Appellant, 

v. 

TRUSTEES OF THE TEAMSTERS SECURITY FUND 

FOR SOUTHERN NEVADA; UNITED STATES OF AMERIC 

acting through the INTERNAL REVENUE SERVICE, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Sixteenth Judicial District, 

In and for the County of Powder River, 

The Honorable Kenneth R. Wilson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

William A. Parry, Trustee; P R Systems 

Irrevocable Trust; Las Vegas, Nevada 

For Respondent: 

George W. Huss; Brown and Huss; 

Miles City, Montana 

(for Respondent Teamsters Security Fund) 

William W. Mercer; Assistant U.S. Attorney; 

Billings, Montana 

(for Respondent United States of America) 

Filed: 

Submitted on Briefs: October 17, 1996 

~~~id~d: December 10, 1996 
Justice Charles E. Erdmann delivered the opinion of the Court. 

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 

1995 Internal Operating Rules, the following decision shall not be 

cited as precedent and shall be published by its filing as a public 

document with the Clerk of the Supreme Court and by a report of its 

result to State Reporter Publishing Company and West Publishing 

Company. 

P R Systems, William Allen Parry, Trustee, appeals from the 

order by the Sixteenth Judicial District Court, Powder River 

County, granting the proceeds from the sheriff's sale to the 

Teamsters Security Fund and the United States. We affirm. 

The issues on appeal are as follows: 

1. Did the District Court lack jurisdiction to consider and 

rule on the question of which party is entitled to the proceeds 

from the sheriff's sale of the real property foreclosed on by 

AgAmerica? 

2. Did the District Court abuse its discretion and act in a 

biased and prejudicial manner against P R Systems during the course 

of the litigation? 

3. Did the District Court abuse its 

refused to grant P R Systems' motion for cont 

FACTS 

Leonard and Dorothy Saye owed $140,415 

discretion when it 

inuance? 

.82 to the Internal 

Revenue Service for unpaid federal income taxes for the tax years 

1978-1980 and 1983. On May 22, 1985, the Sayes granted a mortgage 
to AgAmerica on real property in Powder River County to secure a 

promissory note in the amount of $110,000. The Sayes did not 

respond to the IRS's demand for payment on the back taxes owed, and 

therefore the United States filed a tax lien against the Sayes' 

real property in 1992. 

In August 1994, AgAmerica Corporation filed a complaint to 

foreclose the real estate mortgage securing the promissory note 

between AgAmerica and the Sayes. The Sayes, who were in default on 

the loan payments, were named as defendants along with five other 

parties, including P R Systems, the Trustees of the Teamsters 

Security Fund for Southern Nevada (Teamsters), and the United 

States. 

In January 1995, the District Court issued a judgment, decree 

of foreclosure, and order of sale. Although the ownership of the 

mortgaged real property was not contested in the foreclosure, and 

P R Systems had not filed a pleading in response to the complaint, 

the District Court determined that P R Systems was the owner of the 

real property. The real property mortgaged by the Sayes was then 

sold at a sheriff's sale for $220,000 to BIL Ranch. After payments 

of amounts due and owing AgAmerica and the costs of the foreclosure 

sale, a surplus of $89,939.15 was deposited with the Clerk of the 

District Court. The court then instituted proceedings to determine 

the rights of junior lienholders to the surplusage. 

The United States, P R Systems, and Teamsters all filed 

pleadings asserting a priority in the proceeds. On February 17, 
1996, William Parry, the trustee of P R Systems, sent Judge Wilson 

a common law praecipe captioned "People v. Kenneth Wilson" and a 

comptroller warrant for $492,800 issued by Leroy Schweitzer and 

Daniel Peterson. The writ of praecipe issued by Parry as a 

"Justice pro tempore, Constitution of Nevada," directed Judge 

Wilson to pay $220,000 to BIL Ranch and to "provide a full, 

complete, free and clear redemption to P R Systems," and 

"[ilmmediately after making the above stated payments send the 

remainder of said funds to P R Systems." Parry also stated that 

funds were sent to the IRS in an amount to satisfy all alleged 

assessments, penalties, and interest against the Sayes. 

The District Court issued an order on February 20, 1996, for 

Parry and P R Systems to appear and show cause why they should not 

be held in contempt for serving a common law praecipe and 

comptroller's warrant to intimidate the court. Copies of this 

order were transmitted by facsimile to Thomas E. Towe, counsel for 

P R Systems, and to counsel for the United States. On February 21, 

1996, in a letter forwarded to Parry, Towe noted that "you will 

have to seek additional counsel to defend yourself in connection 

with the Show Cause Order." 

The hearing set for March 1, 1996, was cancelled due to 

inclement weather, and on the same day the court issued an order 

rescheduling the hearing for March 11, 1996. On March 7, 1996, 

Parry sent a motion for continuance to Judge Wilson. This motion 

was received on March 11, the date of the hearing. Neither Parry 
nor another representative of P R Systems attended the hearing. At 

the hearing, the court denied P R Systems' motion for continuance, 

granted the United States' motion to withdraw disclaimer of 

interest, and sua sponte ordered all pleadings and supporting 

argument advanced by P R Systems throughout the litigation 

stricken, and allowed Towe to withdraw as counsel of record of P R 

Systems. On March 28, 1996, the court issued an order directing 

the Clerk of the District Court to distribute the surplus proceeds 

to the United States and the Teamsters, based upon their 

stipulation. The Clerk of the District Court issued two checks, 

one to the Teamsters in the amount of $6,299.83, and one to the 

United States for the balance of the foreclosure proceeds in the 

amount of $86,951.29. P R Systems appeals the District Court's 

order of March 7, 1996. 

ISSUE ONE 

Did the District Court lack jurisdiction to consider and rule 

on the question of which party is entitled to the proceeds from the 

sheriff's sale of the real property foreclosed on by AgAmerica? 

P R Systems argues that the case should be dismissed because 

the District Court did not have jurisdiction. P R Systems asserts 

that to have jurisdiction, "THEY MUST PROVIDE PROOF THEIR AUTHORITY 

EXCEEDS THAT OF THE CONSTITUTION OF THE UNITED STATES. Anything 

less, their case must be dismissed." 

Contrary to P R Systems' assertion, the District Court did 

have both personal and subject matter jurisdiction. P R Systems 
styled itself as a trust and is clearly a "person" within the 

definition of Rule 4A, M.R. Civ. P., which provides: "As used in this 

rule, the word 'person' . . . includes . . . a business trust; 

. . . a trust; . . . or any other legal or commercial entity. " 

Rule 4B, M.R.Civ.P., sets forth those persons who are subject to 

jurisdiction of Montana courts: 

[A] ny person is subject to the jurisdiction of the courts 

of this state as to any claim for relief arising from the 

doing personally, through an employee, or through an 

agent, of any of the following acts: .... 

(c) the ownership, use or possession of any 

property, or of any interest therein, situated within 

this state; 

. . . . (2) Acquisition of jurisdiction. Jurisdiction may 

be acquired by our courts over any person through service 

of process as herein provided; or by the voluntary 

appearance in an action by any person either personally, 

or through an attorney, or through any other authorized 

officer, agent or employee. 

The District Court had personal jurisdiction over P R Systems on 

two bases. First, the action was for judicial foreclosure of a 

mortgage upon real property situated in Powder River County, 

Montana, in which P R Systems claimed an ownership interest. 

Second, personal jurisdiction was acquired by the District Court 

through the voluntary appearance by P R Systems through its 

counsel 

Section 3-5-302, MCA, provides original subject matter 

jurisdiction of the district courts for "all cases at law and in 

equity." The foreclosure of a mortgage is an equitable action over 

which the district court has subject matter jurisdiction. We 
therefore determine that the District Court had both personal and 

subject matter jurisdiction. 

ISSUE TWO 

Did the District Court abuse its discretion and act in a 

biased and prejudicial manner against P R Systems during the course 

of the litigation? 

P R Systems cites several passages from the record alleging 

that these passages indicate the District Court acted in an 

inappropriate and biased manner. P R Systems alleges that the 

District Court appeared to have a "nonchalant preconceived mind 

set, I' a "bias, prejudice and combative mind set, " and that his 

"feud with the 'Freeman' has warped his ability to function in an 

impartial, non-biased, non-prejudice and without malice in the 

capacity as a judge." 

A review of the record, including the transcripts, does not 

reveal that the District Court acted with prejudice, bias, or 

malice. The portions of the record cited by P R Systems, when 

reviewed in context, do not demonstrate the District Court abused 

its discretion. The few instances where the court interrupted 

counsel were not prejudicial to P R Systems, as their counsel was 

allowed to complete his statement of his legal position. 

P R Systems also alleged that the District Court allowed an 

excessive delay in the proceedings; however, P R Systems made no 

objection to the timing of the schedule of proceedings. This Court 

will not address an issue raised for the first time on appeal. 
Rasmussen v. Lee (Mont. 1996), 916 P.2d 98, 100, 53 St. Rep. 263, 

265; Fandrich v. Capital Ford ~incoln Mercury (1995) , 272 Mont . 

425, 431, 901 P.2d 112, 115-16. Thus, in a thorough review of the 

record, this Court does not detect any evidence of malice, bias, 

prejudice or an abuse of discretion by the District Court. 

ISSUE THREE 

Did the District Court abuse its discretion when it refused to 

grant P R Systems' motion for continuance? 

The standard of review of discretionary trial court rulings, 

such as a motion for continuance, is abuse of discretion. In re 

Inquiry into M.M. (1995), 274 Mont. 166, 172, 906 P.2d 675, 678. 

We have previously held that simply seeking a continuance due to 

lack of representation does not ensure the grant of the 

continuance. Matter of Wong (1992), 252 Mont. 111, 827 P.2d 90. 

In Wonq, we stated: 

In making its decision on a requested continuance due to 

lack of counsel, a court or agency must assess whether 

the party petitioning for continuance has acted 

diligently in seeking counsel. If the party has not 

acted diligently in procuring representation, a tribunal 

does not abuse its discretion in denying the continuance. 

Wonq, 827 P.2d at 94 (citations omitted) . 

On February 20, 1996, the District Court directed P R Systems 

and Parry to appear before the court on March 1, 1996, to show 

cause why they should not be held in contempt following their 

tender of the "comptrollers warrant" to the court. The next day, 

P R Systems ' counsel, Towe, moved to withdraw due to the actions of 

P R Systems before the court. Towe also wrote to Parry on 
February 21, 1996, informing him that he would have to seek 

additional counsel in connection with the show cause order. On 

February 29, 1996, one day prior to the scheduled show cause 

hearing, P R Systems faxed to the court a request for a continuance 

based upon the grounds that Parry was "on a jury trial." The 

court, on its own motion, vacated the hearing on March 1 due to 

inclement weather and reset the hearing for March 11, 1996. 

On March 7, 1996, P R Systems mailed a motion for continuance 

from Las Vegas, Nevada, to the District Court. The court received 

the motion on March 11, 1996, the date of the show cause hearing. 

As a basis for the motion, Parry argued that (1) the "contempt 

charges appear to be criminal by definition" thereby entitling 

P R Systems to counsel; (2) P R Systems' attorney "will have 

nothing further to do with this case"; (3) it "may take some time" 

to find new counsel and additional time for the new counsel to 

become familiar with the case; and (4) no counsel will be present 

to represent P R Systems at the March 11 hearing. 

In Marks v. First Judicial District Court (1989), 239 Mont. 

428, 781 P.2d 249, we addressed a similar situation. In that case, 

the district court had issued an order for Marks to appear in court 

ten days later and show cause why he should not be held in 

contempt. Four days prior to the hearing, Marksr attorney advised 

the court that he would be unable to attend the hearing. Counsel 

was advised of the denial of his motion the day before the hearing. 

As in the present case, Marks asserted that the contempt charge was 
criminal in nature and that he was entitled to counsel. This Court 

noted that a contempt proceeding may be quasi-criminal in nature 

but that the right to counsel in this context "has generally been 

held to mean that one charged with contempt of court is entitled to 

a 'reasonable opportunity to employ counsel in contempt 

proceedings. ''I Marks, 781 P.2d at 252. We determined that the 

more than one week Marks had to secure counsel was a reasonable 

period of time to seek and employ counsel. 

On February 21, 1996, counsel for P R Systems informed 

P R Systems and Parry that it would need to have new counsel to 

represent it at the show cause hearing. This provided P R Systems 

with a reasonable amount of time to seek counsel for the show cause 

hearing held on March 11, 1996. Moreover, P R Systems did not 

indicate in its motion that it had made any diligent effort to 

locate new counsel. By not appearing to argue its motion for 

continuance, P R Systems proceeded at its own jeopardy, as the 

filing of its motion did not ensure that it would be granted. 

m, 827 P.2d 90. We therefore conclude that the District Court 

did not abuse its discretion when it refused to grant P R Systems' 

motion for continuance. 

Af f irmed. 

a82-P' Justice 
We concur: